New York State Court of Claims

New York State Court of Claims

HERRMANN v. THE STATE OF NEW YORK, #2004-033-087, Claim No. 107829, Motion No. M-68537


Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK The Court sua sponte amends the caption to read The State of New York as the only Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Steven Cohn, P.C.By: Mitchell Dranow, Esq.
Defendant's attorney:
Wilson, Elser, Moskowitz, Edelman & Dicker, LLPBy: Eugene T. Boule, Esq.
Third-party defendant's attorney:

Signature date:
December 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from the injuries to Kenneth Herrmann (hereinafter "claimant") due to the alleged negligence of the State of New York (hereinafter "State"). The claim is based upon Labor Law §240(1) and other sections.
The claim arose on April 24, 2003, in Mineola, New York. Claimant was employed by an electrical subcontractor doing work on construction of a bridge. The construction had been contracted by the State with DeFoe Corp. Claimant's employer was a subcontractor of DeFoe Corp. On the incident date, claimant alleges that he was working at an elevation and fell. Claimant also argues that he was not provided with proper safety equipment.

Claimant moves for partial summary judgment[1]. In opposition, the State discloses that no depositions have taken place, despite orders of this Court for them to be held. Defendant indicates that claimant has been uncooperative and dilatory in providing discovery, medical authorizations[2] and in scheduling depositions.

This matter was first conferenced on October 7, 2003. The conference was adjourned with no action taking place to allow current defense counsel to substitute for the Attorney General's Office. On December 2, 2003, both current counsel were present at a conference. At that time, the Court ordered that claimant was to provide responses to the demand for bill of particulars and the combined demands on or before January 15, 2004.[3] Claimant was also to provide medical authorizations to defendant by January 15, 2004. Further, claimant was to conduct discovery and inspection of NYS Department of Transportation records by February 29, 2004. Lastly, depositions were to be held on or before April 15, 2004. At the conference on December 2, 2003, it was explained to both counsel that the Court must consent to any changes and/or extensions of the time periods. In the event any problems arose, the parties were to contact the Court.

According to defendant (supported by Exhibit K), claimant did not provide discovery responses until March 12, 2004. On April 6, 2004, defendant contacted the Court to explain that depositions had not taken place and could not take place by April 15, 2004. The Court granted an extension of the depositions until May 31, 2004 and rescheduled the conference for June 23, 2004. Rather than conduct depositions, claimant filed the instant motion on May 26, 2004.

Defendant is correct that case law is replete with decisions stating that a motion for summary judgment prior to conducting discovery is premature.

Claimant's motion for partial summary judgment is denied. As to claimant's uncooperative and dilatory tactics concerning discovery, the Court will issue a further order to allow the parties to expedite the discovery process. Claimant will provide appropriate medical authorizations within ten (10) days of the filing date of this Decision and Order or claimant will be precluded from offering any medical evidence as to his alleged injuries. Claimant will be available for his deposition within forty-five (45) days of the filing date of this Decision and Order or the Claim is dismissed.

December 1, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The following papers have been read and considered on claimant's motion: Notice of Motion for Summary Judgment dated May 25, 2004 and filed May 26, 2004; Affirmation in Support of Motion of Mitchell Dranow, Esq. with annexed Exhibits A-E dated May 25, 2004 and filed May 26, 2004; Affirmation in Opposition of Eugene T. Boule, Esq. with annexed Exhibits A-P dated August 9, 2004 and filed August 12, 2004; Memorandum of Law in Opposition to Claimant's Motion for Summary Judgment of Eugene T. Boule, Esq. dated August 9, 2004 received August 12, 2004; Affidavit of Kenneth Jacques in Opposition to Claimant's Motion for Partial Summary Judgment with annexed Exhibits 1-5 sworn to August 9, 2004 and received August 12, 2004.
[2]Defendant states that the authorizations provided do not conform to recent changes in the law.
[3]The requests for the bill of particulars and combined demands had been served by the Attorney General's Office on or about August 1, 2003.